As filed with the Securities and Exchange Commission on October 6, 2015
Securities Act File No. 333-200595
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
x Pre-Effective Amendment No. 4
¨ Post-Effective Amendment No.
Sierra Income Corporation
(Exact name of registrant as specified in charter)
375 Park Ave, 33rd Floor
New York, NY 10152
(212) 759-0777
(Address and telephone number,
including area code, of principal executive offices)
Seth Taube
Chief Executive Officer
375 Park Ave, 33rd Floor
New York, NY 10152
(Name and address of agent for service)
COPIES TO:
|
Steven B. Boehm, Esq. Harry S. Pangas, Esq. Sutherland Asbill & Brennan LLP 700 Sixth Street, NW Washington, DC 20001 Tel: (202) 383-0100 Fax: (202) 637-3593 |
Rosemarie A. Thurston, Esq. Martin H. Dozier, Esq. Alston & Bird LLP 1201 West Peachtree Street Atlanta, GA 30309-3424 Tel: (404) 881-7000 Fax: (404) 253-8447 |
Lauren B. Prevost, Esq. Heath D. Linsky, Esq. Morris, Manning & Martin, LLP 1600 Atlanta Financial Center 3343 Peachtree Road, NE Atlanta, Georgia 30326 Tel: (404) 233-7000 Fax: (404) 365-9532 |
Approximate date of proposed public offering: As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x
It is proposed that this filing will become effective (check appropriate box):
| ¨ | when declared effective pursuant to Section 8(c). |
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
|
|
||||||||
|
Title of Securities Being Registered |
Amount
to be Registered |
Proposed
Maximum Offering Price per Share |
Proposed
Maximum Aggregate Offering Price (1) |
Amount of
Registration Fee |
||||
|
Common Stock, $0.001 par value per share |
69,000,000 Shares | $10.00 | $690,000,000 | $0 (2) | ||||
|
|
||||||||
|
|
||||||||
| (1) | Estimated pursuant to Rule 457(o) under the Securities Act of 1933 solely for the purpose of determining the registration fee. |
| (2) | As discussed below, pursuant to Rule 415(a)(6) under the Securities Act, this Registration Statement carries over 69,000,000 shares of common stock previously registered by the Registrant under the Registration Statement on Form N-2 (File No. 333-175624), which was initially filed on July 18, 2011 and declared effective on April 16, 2012 (the “Prior Registration Statement”), with respect to which the Registrant paid filing fees of $80,178. The filing fee previously paid with respect to the shares being carried forward to this Registration Statement reduces the amount of fees currently due to $0. |
Explanatory Note
The purpose of this Pre-effective Amendment No. 4 to the Registration Statement on Form N-2 is solely to file certain exhibits to the Registration Statement as set forth in Item 25(2) of Part C.
PART C
Other Information
Item 25. Financial Statements And Exhibits
(1) Financial Statements
The following financial statements of Sierra Income Corporation are included in Part A of this Registration Statement.
INDEX TO FINANCIAL STATEMENTS
(2) Exhibits
| (a)(1) | Articles of Incorporation of the Registrant(1) | |
| (a)(2) | Articles of Amendment of the Registrant(1) | |
| (a)(3) | Articles of Amendment and Restatement of the Registrant(3) | |
| (a)(4) | Second Articles of Amendment and Restatement of the Registrant(6) | |
| (a)(5) | Form of Articles Supplementary Electing to be Subject to Subtitle 8 of the Maryland General Corporation Law* | |
| (b) | Form of Bylaws of the Registrant(1) | |
| (d) | Form of Subscription Agreement (included in the Prospectus as Appendix A) | |
| (e) | Amended and Restated Distribution Reinvestment Plan(8) | |
| (g)(1) | Investment Advisory Agreement(5) | |
C-1
| (h)(1) | Form of Dealer Manager Agreement(2) | |
| (h)(2) | Form of Participating Broker-Dealer Agreement (Included as Exhibit A to the Form of Dealer Manager Agreement)(2) | |
| (h)(3) | Form of Amended and Restated Dealer Manager Agreement)(19) | |
| (h)(4) | From of Participating Broker-Dealer Agreement (Included as Exhibit A to the Form of Amended and Restated Dealer Manager Agreement)(19) | |
| (j) | Custodian Agreement(2) | |
| (k)(1) | Form of Administration Agreement(2) | |
| (k)(2) | Form of License Agreement(5) | |
| (k)(3) | Form of Escrow Agreement(4) | |
| (k)(4) | Expense Support and Reimbursement Agreement(7) | |
| (k)(5) | ISDA 2002 Master Agreement, together with the Schedule thereto and Credit Support Annex to such Schedule, each dated as of August 27, 2013, by and between Arbor Funding LLC and Citibank, N.A.(9) | |
| (k)(6) | Confirmation Letter Agreement, dated as of August 27, 2013, by and between Arbor Funding LLC and Citibank, N.A.(9) | |
| (k)(7) | Confirmation Letter Agreement, dated as of March 21, 2014, by and between Arbor Funding LLC and Citibank, N.A. (10) | |
| (k)(8) | Senior Secured Revolving Credit Agreement among the Company as borrower, the Lenders party thereto, and ING Capital LLC, as Administrative Agent, dated December 4, 2013. (11) | |
| (k)(9) | Guarantee, Pledge and Security Agreement among the Company, the Subsidiary Guarantors party thereto, ING Capital LLC, as Administrative Agent, each Financial Agent and Designated Indebtedness Holder party thereto and ING Capital LLC, as Collateral Agent, dated December 4, 2013. (10) | |
| (k)(10) | Control Agreement among the Company, ING Capital LLC, as collateral agent, and State Street Bank and Trust Company, as the Company’s Custodian, dated December 4, 2013. (10) | |
| (k)(11) | Loan Agreement, dated as of July 23, 2014, by and among Alpine Funding LLC, as company, JPMorgan Chase Bank, National Association, as administrative agent, the Financing Providers from time to time party thereto, SIC Advisors LLC, as the portfolio manager, and the Collateral Administrator, Collateral Agent and Securities Intermediary party thereto. (12) | |
| (k)(12) | Sale and Contribution Agreement, dated as of July 23, 2014, by and between Sierra Income Corporation, as seller, and Alpine Funding LLC, as purchaser. (12) | |
| (k)(13) | Portfolio Management Agreement, dated as of July 23, 2014, by and between Alpine Funding LLC, as borrower and SIC Advisors LLC, as portfolio manager. (12) | |
| (k)(14) | Second Amended and Restated Confirmation Letter Agreement, dated as of July 23, 2014, by and between Arbor Funding LLC and Citibank, N.A. (12) | |
| (k)(15) | Amendment No. 2 to the Senior Secured Revolving Credit Agreement, dated as of August 21, 2014, by and among the Company as borrower, SIC RT1 LLC, as Subsidiary Guarantor, the Lenders party thereto and ING Capital LLC, as Administrative Agent. (13) | |
| (k)(16) | Amendment No. 3 to the Senior Secured Revolving Credit Agreement, dated as of August 21, 2014, by and among the Company as borrower, SIC RT1 LLC, as Subsidiary Guarantor, the Lenders party thereto and ING Capital LLC, as Administrative Agent. (14) | |
C-2
| (k)(17) | Amendment No. 1 to the Loan Agreement, dated as of July 23, 2014, by and among Alpine Funding LLC, as borrower, JPMorgan Chase Bank, National Association, as administrative agent, the Financing Providers from time to time party thereto, SIC Advisors LLC, as the portfolio manager, and the Collateral Administrator, Collateral Agent and Securities Intermediary party thereto. (15) | |
| (k)(18) | Limited Liability Company Operating Agreement of Sierra Senior Loan Strategy JV I LLC, dated March 27, 2015. (16) | |
| (k)(19) | Third Amended and Restated Confirmation Letter Agreement, dated as of June 8, 2015, by and between Arbor Funding LLC and Citibank, N.A. (17) | |
| (l) | Opinion of Sutherland Asbill & Brennan LLP* | |
| (n)(1) | Consent of Independent Registered Public Accounting Firm (19) | |
| (n)(2) | Report of Ernst & Young LLP Regarding the Senior Security Table (18) | |
| (r) | Code of Ethics(2) | |
| * | Filed herewith. |
| (1) | Previously filed in connection with Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2 (File No. 333-175624), filed on November 3, 2011, and incorporated by reference herein. |
| (2) | Previously filed in connection with Pre-Effective Amendment No. 3 to the Registrant’s Registration Statement on Form N-2 (File No. 333-175624), filed on February 21, 2012, and incorporated by reference herein. |
| (3) | Previously filed in connection with Pre-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-2 (File No. 333-175624), filed on March 12, 2012, and incorporated by reference herein. |
| (4) | Previously filed in connection with Pre-Effective Amendment No. 5 to the Registrant’s Registration Statement on Form N-2 (File No. 333-175624), filed on March 21, 2012, and incorporated by reference herein. |
| (5) | Previously filed in connection with Pre-Effective Amendment No. 6 to the Registrant’s Registration Statement on Form N-2 (File No. 333-175624), filed on April 10, 2012, and incorporated by reference herein. |
| (6) | Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 14, 2012, and incorporated by reference herein. |
| (7) | Previously filed as Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed on July 20, 2012, and incorporated by reference herein. |
| (8) | Previously filed as Exhibit 99.2 to the Registrant’s Current Report on Form 8-K filed on September 26, 2012, and incorporated by reference herein. |
| (9) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on September 3, 2013, and incorporated by reference herein. |
| (10) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on March 27, 2014, and incorporated by reference herein. |
| (11) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on December 9, 2013, and incorporated by reference herein. |
| (12) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on July 23, 2014, and incorporated by reference herein. |
| (13) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on August 22, 2014, and incorporated by reference herein. |
| (14) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on November 25, 2014, and incorporated by reference herein. |
C-3
| (15) | Previously filed as an exhibit to Registrant’s Current Report on Form 8-K filed on February 10, 2015, and incorporated by reference herein. |
| (16) | Previously filed as an exhibit to Registrant’s Current Report on Form 8-K filed on March 30, 2015, and incorporated by reference herein. |
| (17) | Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on June 9, 2015, and incorporated by reference herein. |
| (18) | Previously filed in connection with Post-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-2 (File No. 333-175624), filed on April 13, 2015, and incorporated by reference herein. |
| (19) | Previously filed in connection with Pre-Effective Amendment No. 3 to the Registrant’s Registration Statement on Form N-2 (File No. 333-200595), filed on September 24, 2015, and incorporated by reference herein. |
Item 26. Marketing Arrangements
The information contained under the heading “Plan of Distribution” in this Registration Statement is incorporated herein by reference.
Item 27. Other Expenses Of Issuance And Distribution
|
Non-Cash/Training and Education |
$ | 800,000 | ||
|
SEC registration fee |
$ | 80,178 | ||
|
FINRA filing fee |
$ | 104,000 | ||
|
Legal |
$ | 500,000 | ||
|
Printing |
$ | 2,596,197 | ||
|
Accounting |
$ | 144,000 | ||
|
Blue Sky Expenses |
$ | 250,000 | ||
|
Advertising and Sales |
$ | 1,834,375 | ||
|
Literature. |
$ | — | ||
|
Due Diligence |
$ | 350,000 | ||
|
Transfer Agent and Escrow Agent |
$ | 1,966,250 | ||
|
|
|
|||
|
Total |
$ | 8,625,000 | ||
|
|
|
Item 28. Persons Controlled By Or Under Common Control
Immediately prior to the commencement of this offering, SIC Advisors LLC, a Delaware limited liability company, owned 100% of the outstanding common stock of the Registrant. Following the completion of this offering, SIC Advisors LLC’s share ownership is expected to represent less than 1% of the Registrant’s outstanding common stock.
See “Management of the Company,” “Certain Relationships and Related Party Transactions” and “Control Persons and Principal Holders of Securities” in the Prospectus contained herein.
Item 29. Number Of Holders Of Securities
The following table sets forth the number of record holders of the Registrant’s common stock at September 17, 2015.
| Title of Class |
Number of
Record Holders |
|||
|
Common stock, $0.001 par value |
17,180 | |||
C-4
Item 30. Indemnification
The information contained under the heading “Description of our Capital Stock” is incorporated herein by reference.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”) may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person in the successful defense of an action suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is again public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The Registrant carries liability insurance for the benefit of its directors and officers (other than with respect to claims resulting from the willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office) on a claims-made basis.
The Registrant has agreed to indemnify the underwriters against specified liabilities for actions taken in their capacities as such, including liabilities under the Securities Act.
Item 31. Business and Other Connections Of Advisor
A description of any other business, profession, vocation or employment of a substantial nature in which SIC Advisors, and each managing director, director or executive officer of SIC Advisors, is or has been during the past two fiscal years, engaged in for his or her own account or in the capacity of director, officer, employee, partner or trustee, is set forth in Part A of this Registration Statement in the section entitled “The Advisor.” Additional information regarding SIC Advisors and its officers and directors is set forth in its Form ADV, as filed with the Securities and Exchange Commission (SEC File No. 801-73077), and is incorporated herein by reference.
Item 32. Location Of Accounts And Records
All accounts, books and other documents required to be maintained by Section 31(a) of the Investment Company Act of 1940, and the rules thereunder are maintained at the offices of:
| (1) | the Registrant; |
| (2) | the Transfer Agent; |
| (3) | the Custodian; |
| (4) | the Investment Advisor; and |
| (5) | the Administrator. |
Item 33. Management Services
Not Applicable.
C-5
Item 34. Undertakings
We hereby undertake:
(1) to suspend the offering of shares until the prospectus is amended if (i) subsequent to the effective date of this registration statement, our net asset value declines more than ten percent from our net asset value as of the effective date of this registration statement, or (ii) our net asset value increases to an amount greater than our net proceeds as stated in the prospectus;
(2) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(3) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof;
(4) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and
(5) that, for the purpose of determining liability under the Securities Act to any purchaser, if the Registrant is subject to Rule 430C 17 CFR 230.430C: Each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the Securities Act 17 CFR 230.497(b), (c), (d) or (e) as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the Securities Act 17 CFR 230.430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and
(6) that for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of securities. The undersigned Registrant undertakes that in an offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser.
(i) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the Securities Act 17 CFR 230.497;
(ii) the portion of any advertisement pursuant to Rule 482 under the Securities Act 17 CFR 230.482 relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iii) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
C-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Pre-Effective Amendment No. 4 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, and the State of New York, on the 6 th day of October, 2015.
| Sierra Income Corporation | ||
| By: |
/s/ Seth Taube |
|
|
Name: Seth Taube Title: Chairman and Chief Executive Officer |
||
Pursuant to the requirements of the Securities Act of 1933, this Pre-Effective Amendment No. 4 to the Registration Statement has been signed by the following persons in the capacities set forth below on the 6th day of October, 2015. This document may be executed by the signatories hereto on any number of counterparts, all of which constitute one and the same instrument.
| * | Signed by Richard T. Allorto, Jr., pursuant to a power of attorney signed by the Director and filed as part of the registration statement filed on November 25, 2014. |
Exhibit (a)(5)
SIERRA INCOME CORPORATION
FORM OF ARTICLES SUPPLEMENTARY
ELECTING TO BE SUBJECT TO SUBTITLE 8 OF THE MARYLAND GENERAL
CORPORATION LAW
Sierra Income Corporation (the “ Corporation ”), a Maryland corporation, certifies to the State Department of Assessments and Taxation of Maryland that:
RECITALS
FIRST : Section 4.1(f) of the Articles of Amendment and Restatement (the “Charter’) of Sierra Income Corporation provides as follows:
Subject to applicable requirements of the 1940 Act and except as may be provided by the board of directors in setting the terms of any class or series of Preferred Shares (as hereinafter defined), any and all vacancies on the board of directors may be filled only by the affirmative vote of a majority of the remaining directors in office, even if the remaining directors do not constitute a quorum, and any director elected to fill a vacancy shall serve for the remainder of the full term of the directorship in which such vacancy occurred and until a successor is duly elected and qualifies.
SECOND : Pursuant to the authority expressly vested in the Board of Directors of the Corporation (the “ Board of Directors ”) by Section 3-802(a)(2)(ii) of the Maryland General Corporation Law and in order to give full effect to Section 4.1(f) of the Charter, the Board of Directors has, by a resolution of the Board of Directors, elected that the Corporation shall be subject to Section 3-804(c) of the Maryland General Corporation Law, which, in pertinent part, provides that a vacancy on the Board of Directors may be filled only by the affirmative vote of a majority of the remaining directors of the Board of Directors in office, even if the remaining directors do not constitute a quorum.
THIRD : These Articles Supplementary shall become effective upon filing.
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in its name and on its behalf by its Chief Executive Officer as of October [ ], 2015.
| SIERRA INCOME CORPORATION | ||||||||
| Attest: |
|
By: |
|
|||||
| Richard T. Allorto, Jr. | Seth Taube | |||||||
| Secretary | Chief Executive Officer | |||||||
Exhibit (l)
[Letterhead of Sutherland Asbill & Brennan LLP]
October 6, 2015
Sierra Income Corporation
375 Park Ave, 33 rd Floor
New York, NY 10152
| Re: | Sierra Income Corporation |
Registration Statement on Form N-2
File No. 333-200595
Ladies and Gentlemen:
We have acted as counsel to Sierra Income Corporation, a Maryland corporation (the “Company” ), in connection with the preparation and filing by the Company with the Securities and Exchange Commission (the “Commission” ) of a registration statement on Form N-2 on November 25, 2014 (File No. 333-200595, as amended from time to time, the “ Registration Statement ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), with respect to the offer, issuance and sale from time to time of up to 69,000,000 shares (the “Shares” ) of the Company’s common stock, par value $0.001 per share (the “Common Stock” ). The Registration Statement provides that the Shares may be issued from time to time in amounts, at prices, and on the terms set forth in the final prospectus included in the Registration Statement at the time it becomes effective (the “Prospectus” ).
As counsel to the Company, we have participated in the preparation of the Registration Statement and have examined the originals or copies, certified or otherwise identified to our satisfaction as being true copies, of the following:
| (i) | The Articles of Incorporation of the Company, as amended by the Articles of Amendment and Restatement, certified as of a recent date by the State Department of Assessments and Taxation of the State of Maryland (the “Charter” ); |
| (ii) | The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company (the “Bylaws” ); |
| (iii) | A Certificate of Good Standing with respect to the Company issued by the State Department of Assessments and Taxation of the State of Maryland as of a recent date (the “Certificate of Good Standing” ); and |
| (iv) | The resolutions of the board of directors of the Company (the “Board” ) relating to, among other things, (a) the authorization and approval of the preparation and filing of the Registration Statement, and (b) the authorization of the issuance, offer and sale of the Shares pursuant to the Registration Statement, certified as of the date hereof by an officer of the Company (collectively, the “Resolutions” ). |
With respect to such examination and our opinion expressed herein, we have assumed, without any independent investigation or verification, (i) the genuineness of all signatures on all documents submitted to us for examination, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents of all documents submitted to us as conformed or reproduced copies and the authenticity of the originals of such copied documents, and (v) that all certificates issued by public officials have been properly issued. We also have assumed without independent investigation or verification the accuracy and completeness of all corporate records made available to us by the Company.
As to certain matters of fact relevant to the opinions in this opinion letter, we have relied upon certificates of public officials (which we have assumed remain accurate as of the date of this opinion), upon certificates and/or representations of officers and employees of the Company, upon such other certificates as we deemed appropriate, and upon such other data as we have deemed to be appropriate under the circumstances. We have not independently established the facts, or in the case of certificates of public officials, the other statements, so relied upon.
Sierra Income Corporation
October 6, 2015
Page 2
The opinions set forth below are limited to the effect of the Maryland General Corporation Law (the “MGCL” ), as in effect on the date hereof, and we express no opinion as to the applicability or effect of any other laws of such jurisdiction or the laws of any other jurisdictions. Without limiting the preceding sentence, we express no opinion as to any state securities or broker-dealer laws or regulations thereunder relating to the offer, issuance and sale of the Shares pursuant to the Registration Statement.
On the basis of and subject to the foregoing, and in reliance thereon, and subject to the limitations and qualifications set forth in this opinion letter, and assuming that (i) the issuance, offer and sale of the Shares from time to time and the final terms of such issuance, offer and sale, including those relating to price and amount of Shares to be issued, offered and sold, have been duly authorized and determined or otherwise established by proper action of the Board or a duly authorized committee thereof in accordance with the Company’s Charter and Bylaws, and are consistent with the terms and conditions for such issuance, offer and sale set forth in the Resolutions and the descriptions thereof in the Registration Statement and the Prospectus (such authorization or action being hereinafter referred to as the “Corporate Proceedings” ), (iii) any Shares issued and sold pursuant to the Registration Statement have been delivered to, and the agreed consideration has been fully paid at the time of such delivery by, the purchasers thereof, (iv) upon the issuance of any Shares pursuant to the Registration Statement, the total number of shares of Common Stock issued and outstanding does not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter; and (v) the Certificate of Good Standing remains accurate, the Resolutions and the applicable Corporate Proceedings remain in effect, without amendment, and the Registration Statement has become effective under the Securities Act and remains effective at the time of the issuance, offer and/or sale of the Shares, we are of the opinion that, upon completion of all Corporate Proceedings relating thereto, the issuance of the Shares will be duly authorized and, when issued and paid for in accordance with the Registration Statement, the Prospectus, the Resolutions and all Corporate Proceedings relating thereto, the Shares will be validly issued, fully paid and nonassessable.
The opinions expressed in this opinion letter (i) are strictly limited to the matters stated in this opinion letter, and without limiting the foregoing, no other opinions are to be implied and (ii) are only as of the date of this opinion letter, and we are under no obligation, and do not undertake, to advise the addressee of this opinion letter or any other person or entity either of any change of law or fact that occurs, or of any fact that comes to our attention, after the date of this opinion letter, even though such change or such fact may affect the legal analysis or a legal conclusion in this opinion letter.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. We do not admit by giving this consent that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Respectfully submitted, |
| /s/ Sutherland Asbill & Brennan LLP |